2026 PLP 926 (MLD)

Sardar Ahmad Haleemi, J.

The instant Criminal Acquittal Appeal is directed against the order dated 7th May, 2025 (hereinafter the "impugned order") passed by learned Special Tribunal/Additional acquitted of the charge. Sessions Judge-III, Quetta (hereinafter the "Tribunal"), whereby allowed the respondent s application under section 265-K, Cr.P.C and acquitted of the charge.

2. As per contents of the crime report No.26/2024, the complaint IP Abid Ali Jutt of FIA CBC, Quetta lodged the FIR under sections 4(i) 5 and 23 of Foreign Exchange Regulation Act, 1947 (FERA, 1947) at Police Station FIA (CBC), Quetta to the effect that consequent upon inquiry No.120 of 2024 with regard to information received about a person namely Nasir Khan (respondent), who was involved in illegal and unauthorized business of sale/purchase of foreign currencies at an unnamed shop (previously named Karawan Exchange) near Habib Bank Limited at Shara-e-Iqbal, Qandhari Bazar, Quetta, a raid headed by IP/SHO Abdil Ali Jutt along with other police officials was conducted at the pointed place, where respondent found, as such, after conducting search, recovery of incriminating articles mentioned in Para No.2 of the impugned order was effected. The accused/respondent failed to produce any legal authority/licence of said illegal business, hence the FIR.

3. After completion of the charge, the challan was submitted before the Tribunal and the trial commenced. The charge was framed against the accused/acquitted respondent, to which, he pleaded not guilty and claimed trial.

4. When the prosecution was directed to lead its evidence, in the meanwhile, the accused/acquitted respondent through counsel moved an application under section 265-K, Cr.P.C.

5. The Tribunal heard the arguments of learned counsel for the parties on the application and vide impugned order dated 7th May, 2025 acquitted respondent of the charge, hence this Criminal Acquittal Appeal.

6. The learned Additional Attorney General and Assistant Attorney General assisted by the Assistant Director (Legal), FIA, inter alia contended that the impugned order is contrary to the dictum laid down by the Hon ble Supreme Court of Pakistan in 2022 SCMR 1861, as it was passed without recording any prosecution evidence; that the learned Tribunal, while allowing the application under Section 265-K, Cr.P.C., misinterpreted the provisions of Section 19(3) of the Foreign Exchange Regulation Act, 1947 (FERA), which, according to the learned counsel, does not require a search warrant in cases of raids conducted on hawaladars; that the Tribunal failed to correctly interpret Section 23(3) of FERA, 1947, which clearly ousts the requirement of a complaint in respect of persons found involved in illegal foreign exchange business; that a complaint under the Act is only mandatory in cases involving persons registered with the State Bank of Pakistan under Sections 3, 3A, and 3AA of FERA, therefore, the burden of proof lay upon the accused/acquitted respondent, which he failed to discharge. However, the learned Tribunal, in undue haste, allowed the application under Section 265-K, Cr.P.C., and acquitted the accused without proper appreciation of the law and facts, making the impugned order liable to be set aside; that the special law not only renders the offence cognizable but also imposes a condition regarding the filing of a complaint for the Court to take cognizance. However, this bar applies to the Court and not to the investigating agency, and as such, the FIR was rightly registered by the agency. Reliance was placed on the judgment of the Lahore High Court reported as PLD 2010 Lahore 692, wherein it was held that the term complaint used in a special law differs from the definition of complaint under Section 4(h) of the Cr.P.C.; that all these legal aspects, as well as relevant documentary evidence, were required to be considered and brought on record before the Tribunal. However, the Tribunal, in a cursory and slipshod manner, allowed the application of the accused/acquitted respondent, and its findings, being based on a misinterpretation of law, are liable to be set aside.

7. We have heard the learned Deputy Attorney General and perused the available record with his able assistance.

8. Perusal of record reveals that the prosecution booked acquitted respondents on the accusation of illegal Hawala/Hundi business in crime report, No.26/2024. The pivotal question before this court is whether the FIA authorities are competent to lodge an FIR directly in foreign currency cases without the complaint of an authorized person in terms of section 23(3A) of FERA, 1947 and the legality of consequent proceedings. For convenience, Section 23(3A) of FERA, 1947 is reproduced as under: (3A) A person authorized under subsection (3) to make a complaint in writing shall, if he is not already a public servant within the meaning of section 21 of the Pakistan Penal Code (Act XLV of 1860), be deemed to be a public servant within the meaning of that section.

9. The afore-mentioned provision of the FERA, 1947, clearly demonstrates that no court shall take cognizance of any offence punishable under FERA 1947, except upon a complaint in writing made by a person authorized in this behalf by the Central Government or the State Bank of Pakistan. Moreover, the law requires that prosecution must bring sufficient material against the accused person on record, who were indulged in the business of illegal foreign currency. However, the prosecution case is based on the huge transactions of Pakistan currency carried out in the bank accounts, which is not adequate to constitute an offence under the FERA, 1947, as such, the prosecution has failed to follow the mandatory conditions precedent for initiation of proceedings under the FERA, 1947. The prosecution must demonstrate that the accused was actively involved in an unauthorized transaction, or that the accused was directly linked with an intent to deal in foreign exchange contrary to law. Absence of such proof of dealing or intent, mere custody of foreign currency cannot attract penal consequences within the meaning of Section

4. Reliance is placed on the case of Said Afzal and another v. The State and others, 2018 YLR 1256, the relevant para is reproduced as under: An iota of evidence either documentary or oral has not been brought on record by the prosecution to prove that they were buying, borrowing from or selling or lending to or exchanging the recovered foreign currency with any unauthorized person. In this view of the matter, it is a simple case of recovery of foreign currency from possession of a foreigner in Pakistan. The first legal question which pinches the mind of this Court is whether simple possession of the appellants, would constitute an offence under section 4 of the FER, Act, 1947. For the sake of convenience and ready reference section 4(1) of the Act (ibid) is reproduced below: "Restrictions on dealing in Foreign Exchange:

Except with the previous general or special permission of the State Bank, no person other than an authorized dealer shall in Pakistan, and no person resident in Pakistan other than an authorized dealer shall outside Pakistan, buy or borrow from, or sell or lend to, or exchange with, any person not being an authorized dealer, any foreign exchange". Bare reading of the above quoted provision of the law clearly postulates that unless a case of buying or borrowing from or selling or lending to or exchange with any person not being an authorized dealer, is made out, the provision of section 4 of the Act (ibid) cannot be attracted. It is not the case of the prosecution that the appellants were buying, borrowing from or selling to or lending to or exchanging the recovered foreign currency with any unauthorized person.

10. Admittedly, the authorized person on behalf of the Central Government or the State Bank of Pakistan did not transmit any complaint in writing. The prosecution has failed to place any material to substantiate the same. In the absence of the requisite authorization, the lodging of the FIR and the subsequent investigation carried out by the FIA authorities are patently without lawful authority and plausible justification. In the case of State v. Zahid Khan 2022 CLD 484, it was conclusively held that no proceedings under the FERA, 1947 can be initiated unless a complaint in writing is made by a person duly authorized by the State Bank of Pakistan. Mere registration of FIR by the FIA authority, without such a complaint, is in contravention of the law and cannot sustain judicial scrutiny. It is a settled principle that when an act or proceeding is done in violation of an express provision of law, such action is null and void and of no legal effect.

11. Furthermore, the scrutiny of material/evidence on record manifests that the prosecution has failed to recover any foreign currency from acquitted respondents neither the alleged bank transaction of Pakistani currency establishes the link of acquitted respondents in the business of foreign currency. Mere account holders huge transaction of Pakistani currency in the bank account is not sufficient to constitute a cognizable offence under the FERA, 1947. It is a cardinal principle in criminal jurisprudence that the initial burden always lies on the shoulder of the prosecution to prove the case and without substantiating the same through tangible evidence, makes the prosecution version doubtful. Reliance in this regard is placed in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724), wherein it has held as under: " It has been found by us to be intriguing that the above mentioned eye-witness had claimed to have seen the occurrence, wherein Mst. Hameed Bibi had been critically injured but surprisingly the said eye-witness had never taken the injured victim to the hospital for medical treatment and till the arrival of the complainant at the house of occurrence the dead body of Mst. Hameed Bibi was still lying in that house and it was he who had stately taken the dead body to the hospital. Such unusual conduct of the above mentioned eye-witness surely raised an eye-brow".

12. As a sequel to the above discussion, we are of the considered view that the findings rendered by the Tribunal are legally correct and immune from interference. No infirmity, perversity, of legal error has been found in the impugned order, warranting the interference of this court in the appeal.

13. Apart from the above, it is also a settled principle in criminal justice system that once an accused has been acquitted after full application of judicial mind, even at a pre-evidence stage, the presumption of double innocence attaches, as enunciated by the Hon ble Supreme Court in numerous decisions. Unless the impugned order is shown to be perverse or based on a misreading of material, which are lacking in the instant case, thus no appellate interference is called for. For the above reasons, the Criminal Acquittal Appeal No. 190 of 2025 being devoid of merit is dismissed in limine. MH/138/Bal. Appeal dismissed.